No. Not really breaking. We knew that CIA was playing around with its obligation to inform the intelligence committees before it starts any big new projects–like opening torture factories around the world.

But that’s the real story of this briefing list–aside from what a bunch right wingers are claiming it says, the actual details of the briefing list notwithstanding. The real story is that the CIA was playing a bunch of games to be able to claim it had informed Congress, even while only informing some of Congress some things.

First, CIA has officially confirmed what I have been saying for weeks. The CIA first briefed Congress on torture on September 4, 2002, 35 days after CIA purportedly began waterboarding and much longer after we know CIA started torturing Abu Zubaydah. Moreover, we have on the record statements from Pelosi and Goss (and I’ve had even stronger assurances elsewhere) that CIA did not tell Congress they were already in the business of torture. Their discussions of torture were all prospective, and they may even have stated clearly that they had not used these techniques yet, which (if true) would be a clear and direct lie to Congress. 

Second, look at when–according to the CIA’s specific assertions–they first talked about waterboarding to members of Congress:

February 4, 2003: Pat Roberts and a Republican and a Democratic staffer (but not Jello Jay); according to the CIA there was no specific mention of waterboarding in the February 5, 2003 briefing for Porter Goss and Jane Harman

July 13, 2004:  Porter Goss and Jane Harman

July 15, 2004:  Pat Roberts and Jello Jay

Now, it’s possible that the people trying to smear Pelosi with this are correct and CIA mentioned waterboarding in September 2002. But that’s not what the CIA says. Once you account for the fact that Jello Jay did not attend the February 4 briefing, the CIA says it first informed Democrats about waterboarding in July 2004, only after the CIA’s own Inspector General had declared the program cruel and inhuman (and note, the Senate intelligence leaders, at least, got a copy of that document in June 2004, so the CIA couldn’t very well pretend that they hadn’t been waterboarding).  

Note, too, that the CIA claims to have discussed legal issues in the July briefing with Harman and Goss, but not in the July briefing with Jello Jay and Roberts. We know this to be false. 

In July 2004, the CIA briefed the Chairman and Vice Chairman of the Committee on the facts and conclusions of the Inspector General special review. The CIA indicated at that time that it was seeking OLC’s legal analysis on whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture.

Given the way the SSCI narrative focuses on the constitutional amendments named under CAT (the 5th, 8th, and 14th), I suspect CIA was informed in no uncertain terms they would have to account for these in the briefing. If they did not record the fact, it suggests they were trying to claim deniability for that key issue (though that is speculative on my part).

 The CIA seems to have no memory of the details of the 2005 briefings (and, as WO has pointed out, seems to have been unsure who was HPSCI Chair and who was DCIA, since it claims that Porter Goss, then head of CIA, attended a March 8, 2004 2005 [ed–fixed late, sorry] hearing as HPSCI Chair). That’s rather curious as Mary McCarthy has alleged that the CIA briefers in two hearings in 2005 lied to Congress.  At least one of these briefings would have also featured the Senators asking why they fuck OLC ignored the 8th Amendment (and the CAT generally) in its December 2004 opinion. It includes briefings when Jello Jay was beginning to ask for more details on the torture program, to no avail. And, finally, it includes briefings when Congress should have been briefed about the destroyed torture tapes, but wasn’t. All of that? The CIA seems to have little memory of it. 

Then there’s the slew of Republican-only briefings in 2005, just after the Senate approved the McCain Amendment limiting torture use. As I’ve explained the most suspicious of those is the briefing of the two pro-torture Republicans holding DOD’s purse strings. 

Until, finally, in 2006, it finally gets around to briefing the full intelligence committees but not yet the full Gang of Eight, leaving off the House leadership, including Nancy Pelosi. Anyone wonder why Jane Harman got her very own briefing on September 6, 2006, the day Bush finally came clean as a tortuer? I do.

In short, in spite of what Republicans tell you (and therefore ABC prints), this is actually an utter damning chronology of CIA contempt for their obligations to inform Congress (particularly Democrats in Congress).

The NYT allowed a bunch of gosslings to tell them a story anonymously that they were unwilling–at least partly for legal reasons–to say on the record. They told a story of Porter Goss heroically refusing Stephen Hadley’s (and by association, Dick Cheney’s) pressure to keep the CIA in the torture business.

Acutely aware that the agency would be blamed if the policies lost political support, nervous C.I.A. officials began to curb its practices much earlier than most Americans know: no one was waterboarded after March 2003, and coercive interrogation methods were shelved altogether in 2005.

[snip]

Provoked by the abuse scandal at the Abu Ghraib prison in Iraq and pushed by Senator John McCain of Arizona, who had been tortured by the North Vietnamese, the 2005 bill banned cruel, inhuman and degrading treatment.

Top C.I.A. officials then feared that the agency’s methods could actually be illegal. Mr. Goss, who had succeeded Mr. Tenet at the C.I.A., wrote a memorandum to the White House saying the agency would carry out no harsh interrogations without new Justice Department approval.

The national security advisor, Mr. Hadley, was angered by the C.I.A.’s response. He called Mr. Goss at home over the Christmas holidays to complain; Mr. Goss, backed by his lawyers, would not budge. Mr. Hadley decided he could not push the C.I.A. to do what it thought might be illegal.

But there’s a problem with this story.

Robert Grenier.

Grenier was head of Counterterrorism at the CIA during the Christmas holiday of 2005-6. Yet he was fired within weeks of Goss’ heroic stand against torture because–CIA sources said–he was "insufficiently forceful" against al Qaeda.

His boss at the clandestine service, the nation’s senior human intelligence officer, was said to regard him as insufficiently forceful in the battle with al Qaeda.

"The word on Bob was that he was a good officer, but not the one for the job and not quite as aggressive as he might have been," one official said.

Vincent Cannistraro was more explicit about what "not aggressive enough" means: that Grenier was opposed to waterboarding.

Vincent Cannistraro, a former head of counter-terrorism at the agency, said: “It is not that Grenier wasn’t aggressive enough, it is that he wasn’t ‘with the programme’. He expressed misgivings about the secret prisons in Europe and the rendition of terrorists.”

Grenier also opposed “excessive” interrogation, such as strapping suspects to boards and dunking them in water, according to Cannistraro.

And while Grenier himself said the continued disappearance of the High Value Detainees was a big part of the problem, he also raised the insufficient clarity in law following the McCain Amendment–precisely the problem Goss is said to have confronted.

Now, it may be that Jose Rodriguez (the "boss at the clandestine service" described in the first excerpt) decided to sack Grenier without the input of or against the wishes of his own boss, Porter Goss (precisely the tale, of course, that Goss tells about the destruction of the torture tapes just months earlier). It may be that Cheney went through Goss to Rodriguez to get him to fire Grenier (note, in the NPR interview, Grenier makes it clear he was unloved at the White House). It may be that Grenier was the source of the pushback that Goss now claims credit for. It may really be that Rodriguez and Grenier supported the same policies, but just despised each other. 

But if Porter Goss really did resolve this issue at the end of 2005, then it would have mooted one of the big reasons for ousting Grenier. Nevertheless, Grenier was sacked, just weeks later. (Then again, Goss himself was sacked just months later.)

Now, I don’t know what the explanation is–why Goss claims to have stood against torture in December-January but then overseen the firing of someone for being insufficiently pro-torture in February. Maybe, there’s a perfectly good explanation. But for the moment, the gosslings refusing to say these things on the record for legal reasons aren’t giving that good explanation. 

Keep in mind that this article seems to be at least partly the product of two entities–the Bellinger/Condi- and the Goss-reputation protection entities–that have been working overtime lately. (h/t Loo Hoo) In fact, the article references the YouTube of Condi proclaiming, "By definition, if it was authorized by the President, it did not violate our obligations in the Convention Against Torture," without explicitly telling NYT’s readers what Condi said. I guess that part–the part where Condi continues to defend the program by channeling Nixon–isn’t important.

Nevertheless, the article provides a few more data points on the torture plan.

June 2003 Statement of Support Was a Response to Shrub’s Speech

First, the article explains why CIA chose June 2003–of all times–to insist the White House write up a policy statement supporting torture with Bush’s name on it. 

The proclamation that President George W. Bush issued on June 26, 2003, to mark the United Nations International Day in Support of Victims of Torture seemed innocuous, one of dozens of high-minded statements published and duly ignored each year.

The United States is “committed to the worldwide elimination of torture and we are leading this fight by example,” Mr. Bush declared, vowing to prosecute torture and to prevent “other cruel and unusual punishment.”

Uh, yeah, I can see why that would make the CIA squirmy about doing Bush’s cruel and unusual punishment for him.

If this were a just world, the statement CIA forced Bush to write after he proclaimed we will prosecute torture and prevent cruel and unusual punishment, the statement basically endorsing torture as our country’s policy, will be the piece of evidence that leads to his prosecution. Alas, this is not usually a just world. 

Porter Goss CYAed Himself in December 2005

And then there’s the bit where Porter Goss protects himself by saying White House was pushing for torture at the end of 2005, but Goss was refusing without further cover from DOJ.

Acutely aware that the agency would be blamed if the policies lost political support, nervous C.I.A. officials began to curb its practices much earlier than most Americans know: no one was waterboarded after March 2003, and coercive interrogation methods were shelved altogether in 2005.

[snip]

Provoked by the abuse scandal at the Abu Ghraib prison in Iraq and pushed by Senator John McCain of Arizona, who had been tortured by the North Vietnamese, the 2005 bill banned cruel, inhuman and degrading treatment.

Top C.I.A. officials then feared that the agency’s methods could actually be illegal. Mr. Goss, who had succeeded Mr. Tenet at the C.I.A., wrote a memorandum to the White House saying the agency would carry out no harsh interrogations without new Justice Department approval.

The national security advisor, Mr. Hadley, was angered by the C.I.A.’s response. He called Mr. Goss at home over the Christmas holidays to complain; Mr. Goss, backed by his lawyers, would not budge. Mr. Hadley decided he could not push the C.I.A. to do what it thought might be illegal.

Now, there are reasons to doubt this narrative (aside from the fact that it comes from Porter Goss). McCain’s bill left wiggleroom for the CIA. And CIA already had an opinion from DOJ–the May 30, 2005 memo published earlier that year–purporting to discuss cruel and unusual treatment. So the concern of the lawyers at CIA had to have been as much about how crappy Bradbury’s opinion was as it was about anything in the McCain Amendment. 

It’s also rather nice, don’t you think, that Goss doesn’t mention his role in not preventing the destruction of the torture tapes right in the middle of the debate on the McCain amendment? I guess that–like Condi’s "by definition" statement–isn’t relevant to this story. Yet it suggests a number of other possible motives behind Goss’ refusal to continue torturing–particularly as Congress continued to look more closely at the CIA’s torture program. Of course, if Goss admitted that, then it would ruin his whole narrative about how Congress never complained, wouldn’t it? But perhaps he’s moving on from that narrative to one that claims that "Dick made me do it."

Condi Triumphant Over Dick

And then the story tells about how Condi triumphed over Cheney in insisting that the high value detainees be brought to Gitmo in September 2006 (click through–there’s a part about everyone laughing at Gonzales’ stupid solution for the detainee problem). 

But this part of the narrative may be a limited reveal of upcoming Bradbury horrors as much as anything else. Apparently, after SCOTUS told the Administration that detainees qualified for Article 3 of the Geneva Conventions, Cheney had Bradbury write a memo that tried to say, "Lalalalalalalalala I can’t hear you."

Still, Mr. Cheney and top Justice Department officials fought to revive the program. Steven G. Bradbury, the head of the department’s Office of Legal Counsel and author of the recently declassified 2005 memorandums authorizing harsh C.I.A interrogations, began drafting another memorandum in late 2006 to restore legal approval for harsh interrogation. Mr. Bradbury noted that Congress, despite the public controversy, had left it to the White House to set the limits.

Early drafts of the memorandum, circulated through the White House, the C.I.A. and the State Department, stunned some officials. Just months after the Supreme Court had declared that the Geneva Convention applied to Al Qaeda, the new Bradbury memorandum gave its blessing to almost every technique, except waterboarding, that the C.I.A. had used since 2002.

Forced as secretary of state to defend the C.I.A. program before angry European allies, Ms. Rice and her aides argued that it had outlived its usefulness.

In February 2007, Mr. Bellinger wrote to the Justice Department challenging Mr. Bradbury’s position. He called Mr. Bradbury’s memorandum a “work of advocacy” that gave a twisted interpretation of the Geneva Conventions, and told colleagues he might resign.

When Mr. Bush finally reauthorized C.I.A. interrogations with an executive order in July 2007, it reflected the yearlong lobbying of Mr. Bellinger and Ms. Rice: Forced nudity was banned and guidelines for sleep deprivation were tighter.

Note the "outlived its usefulness" line? That’s not going to be much of a help in suppressing the "by definition" comment.

As I said, though, some of this may be a pre-emptive reveal on Bradbury’s part. We know OPR may have looked at emails exchange regarding the opinions Bradbury and Yoo wrote. Imagine what those early emails must have looked like, responding to Bradbury deliberately ignoring a SCOTUS ruling?

Though there’s one thing that’s odd about this narrative. Bradbury (presumably) also wrote two 2006 memos; but the one referred to in this story seems to be the 2007 memo. The SSCI Narrative describes the memos Bradbury wrote in this period this way.

In August 2006, OLC issued two documents considering the legality of the conditions of confinement in CIA facilities. One of the documents was an opinion interpreting the Detainee Treatment Act; the other document was a letter interpreting Common Article 3 of the Geneva Conventions, as enforced by the War Crimes Act. These documents included consideration of U.S. constitutional law and the legal decisions of international tribunals and other countries.

[snip]

In July 2007, the President issued Executive Order 13440, which interpreted the additional obligations of the United States imposed by Common Article 3 of the Geneva Conventions. In conjunction with release of that Executive Order, OLC issued a legal opinion analyzing the legality of the interrogation techniques currently authorized for use in the CIA program under Common Article 3 of the Geneva Conventions, the Detainee Treatment Act, and the War Crimes Act.

While the confusion over which of these memos this pertains to doesn’t change the audacity of Cheney and friends telling SCOTUS to fuck off, it does raise questions about the reaction to those earlier memos.

I guess the biggest conclusion we can draw from this article is that the torture apologists are going to continue turning on each other to try to exonerate their own roles in this process. And heck, if Dick Cheney and David Addington and Steven Bradbury end up holding the bag, I can live with that. 

Michael Hayden and the rest of the torture apologists have been wandering around all week claiming that the Administration could have won its FOIA case against ACLU and withheld the torture memos.

If this ruling from Juge Hellerstein is any indication, they couldn’t be more wrong. It did five things:

• Demanded a full "Vaughn" index for the FOIAed materials, describing the people involved and other details.
• Refused the government’s attempt to limit production of descriptions of the torture tapes to August 2002, and instead demanded all of it (through December 2002)
• Required the government to produce documents relating to the torture tape destruction through at least June 20, 2003.
• Sent the government back to reconsider the redactions on documents pertaining to the torture tapes that takes into consideration the release of the torture memos.
• Asked whether it’s too soon to hold CIA in contempt for destroying the torture tapes that were resposive to the original FOIA.

I would imagine we’re going to be seeing a lot more revealing documents get processed through Hellerstein’s Courtroom.

I’ve put this detail in a series of posts, but it really deserves a full post. According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.

On page 37 of the OLC memo, in a passage discussing the differences between SERE techniques and the torture used with detainees, the memo explains:

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.

Note, the information comes from the CIA IG report which, in the case of Abu Zubaydah, is based on having viewed the torture tapes as well as other materials. So this is presumably a number that was once backed up by video evidence.

The same OLC memo passage explains how the CIA might manage to waterboard these men so many times in one month each (though even with these chilling numbers, the CIA’s math doesn’t add up).

…where authorized, it may be used for two "sessions" per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water appliaction. See id. at 42.  Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

So: two two-hour sessions a day, with six applications of the waterboard each = 12 applications in a day. Though to get up to the permitted 12 minutes of waterboarding in a day (with each use of the waterboard limited to 40 seconds), you’d need 18 applications in a day.  Assuming you use the larger 18 applications in one 24-hour period, and do 18 applications on five days within a month, you’ve waterboarded 90 times–still just half of what they did to KSM.

The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM. 

That doesn’t sound very effective to me. 

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here.

Update: Here’s one reason to demand a special prosecutor to investigate these actions. In addition to revealing the sheer number of times KSM and Abu Zubaydah were waterboarded, the memos reveal that the interrogators who waterboarded these men went far beyond even the expansive  guidelines for torture described in the Bybee Memo, notably by dumping water onto their nose and mouth, rather than dribbing it on.

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") [my emphasis]

There’s been a lot of discussion about whether those who did what the OLC memos authorized should be prosecuted. But in the case of those who waterboarded KSM and Abu Zubaydah, that’s irrelevant, because they did things the OLC memos didn’t authorize.

The AP reports that along with John Deutsch and Michael Hayden, George Tenet and Porter Goss have criticized Obama’s release of the torture memos.

Of course Tenet and Goss would criticize Obama’s decision. Both of them are personally implicated by revelations in the memos.

As I noted (as did William Ockham–I stole his transcription), the May 30, 2005 memo makes it clear that people at CIA Headquarters ordered Abu Zubaydah to be waterboarded additional time(s)–for the 83rd time, perhaps?–even after interrogators working with him directly believed he was complying with their demands.

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redaction of ~3/4 of a line] See id, at 84-85.

We can’t pin this on Tenet directly, though we do know Bush was pressuring Tenet at the time to deliver some kind of intelligence that would substantiate Bush’s public assertions that Abu Zubaydah was important within the Al Qaeda ranks.

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You’re not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth,"

And in any case, we know that the one time when even the CIA agrees Abu Zubaydah was waterboarded "needlessly," it was done on the order of CIA headquarters under Tenet’s leadership.

Also as I noted, the May 10, 2005 "Techniques" memo reveals that Abu Zubaydah’s interrogator far exceeding OLC guidlines on how to administer waterboarding. 

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14.[my emphasis]

Not only does this implicate Tenet–who was DCI at the time–for further mismanagement, but it implicates his successor Porter Goss.

Goss was in charge when the CIA–having been warned not to destroy the torture tapes–did so anyway. And this OLC memo provides proof that CIA had more to worry about than just that the identities of those depicted administering torture on the tapes would be revealed. We know that the tapes were clear evidence that the interrogators were breaking the law–exceeding even the expansive guidelines laid out in the Bybee Memo on how waterboarding should be used. This memo, in other words, proves what we already suspected–that the torture tape destruction served to obstruct justice. 

And that destruction happened on Portor Goss’ watch, even after he had been warned not to let the tapes be destroyed.

So its no wonder that Tenet and Goss would object to the release of these memos. 

What is surprising, though, is that journalists wouldn’t begin to explore why Tenet and Goss feel so strongly about it. 

The May 10, 2005 "Techniques" memo makes it clear that the torturers who claim the Bybee memo legalized their water-boarding of Khalid Sheikh Mohammed and Abu Zubaydah are wrong.

That’s because the torturers didn’t do what the memo authorized. In a footnote on page 41, it says:

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2. [my emphasis]

In other words, the interrogators were dumping water on AZ’s and KSM’s faces and repeating that treatment over and over and over.

Without any legal authorization to do so, no matter how bogus.

It’s time this torturer faced some  "poignant and convincing" consequences for his actions. 

And note, this is precisely why the torture tapes were destroyed. CIA has admitted that the guys waterboarding Abu Zubaydah broke the law. That tape was the irrefutable evidence of who did what. 

Update: Fixed my dates.

graphic by PirateCat

Marcy earlier noted the article in today’s Washington Post by Peter Finn and Joby Warrick detailing the story surrounding abu-Zubaydah’s capture and torture. I want to pick up with Marcy’s last line:

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

Well, yes, because it was crystal clear at the outset the explanation initially given by the Bush/Cheney Administration – that they had researched the matter completely and the tapes had no evidentiary value in any possible proceeding whatsoever and they were concerned about privacy of hard working investigators – was totally bogus.

It has been my belief from the outset that the reason the "torture tapes" were destroyed was not simply because they depicted the brutal torture of detainee subjects but, just as importantly, if not more so, they demonstrated there was no credible/usable information produced as a result of that torture. Warrick and Finn confirm this. Even worse, they confirm what little good information the Bushies did extract from abu-Zubaydah was obtained through traditional interrogation prior to the onset of the torture program:

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda’s chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed.

Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources.

And there you have it. The Bushies made the conscious and criminal decision to go full tilt torture having direct reason to know both that abu-Zubaydah was cooperating through traditional interrogation and he was of very marginal use as an information source to start with.

Frustrated, the Bush administration ratcheted up the pressure — for the first time approving the use of increasingly harsh interrogations, including waterboarding.
…
The application of techniques such as waterboarding — a form of simulated drowning that U.S. officials had previously deemed a crime — prompted a sudden torrent of names and facts. Abu Zubaida began unspooling the details of various al-Qaeda plots, including plans to unleash weapons of mass destruction.
…
Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms….Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

"We spent millions of dollars chasing false alarms," one former intelligence official said.

Such is the clincher as to why the torture tapes had to be destroyed. It wasn’t just that Bush/Cheney et. al wanted to keep evidence of their torture program secret, there was never any complete way to do that. But there was only one thing that could prove they tortured for nothing and got nothing – the tapes. Cheney and his coterie of fellow Torquemadas were fiends proud of their handiwork; if they had evidence that it worked, they would have kept it. They burn spies for fun, crow on television about their willingness to torture and what they have accomplished, do you really think for one second they wouldn’t retain proof if they had it?

And let us not forget just who we are talking about here – it is the White House Principals group:

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies.

Cheney, Rice, Rumsfeld, Powell, Tenet and Ashcroft. Means, motive and opportunity. Who could have imagined?

This certainly explains why it was top White House lawyers including Gonzales, Addington, Bellinger and Miers, with "vigorous sentiment", assisted the CIA in the decision and process to destroy the torture tapes of abu-Zubaydah and others. There are definable offenses in their conduct: obstruction of justice, contempt of court, conspiracy, false statement/perjury, mishandling of classified material, and willful destruction of material evidence in federal investigations.

There exist patently clear crimes; where is the criminal justice system? We should not have to be humiliated by having to rely on other first world countries such as Spain, or international committees such as the Red Cross, to show us functioning justice and the rule of law.

I don’t want the Obama Administration to be partisan and spiteful, I want them to do their damn job. Is that too much to ask?

I presume this story on Abu Zubaydah is an attempt to highlight the difficulty of choices facing the Obama administration, as well as to draw some attention to things like the excerpts of the ICRC report on Abu Zubaydah’s (and others’) torture. It reminds us what we already know–that Abu Zubaydah suffers from a head injury that made his memory bad and wasn’t even a member of al Qaeda, making his torture that much more pointless.

Because his name often turned up in intelligence traffic linked to al-Qaeda transactions, some U.S. intelligence leaders were convinced that Abu Zubaida was a major figure in the terrorist organization, according to officials engaged in the discussions at the time.

But Abu Zubaida had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing, the officials said.

[snip]

"The government doesn’t retreat from who KSM is, and neither does KSM," said Joseph Margulies, a professor of law at Northwestern University and one of Abu Zubaida’s attorneys, using an abbreviation for Mohammed. "With Zubaida, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in." 

The news, here, seems to be that the US picked up a young associate of Abu Zubaydah the same night they got the older man. And that associate, Noor al-Deen, basically corroborated the details the intelligence community is now accepting. Before the US started torturing Abu Zubaydah.

Noor al-Deen, a Syrian, was a teenager when he was captured along with Abu Zubaida at a Pakistani safe house. Perhaps because of his youth and agitated state, he readily answered U.S. questions, officials said, and the questioning went on for months, first in Pakistan and later in a detention facility in Morocco. His description of Abu Zubaida was consistent: The older man was a well-known functionary with links to al-Qaeda, but he knew little detailed information about the group’s operations.

[snip]

On the night of March 28, 2002, Pakistani and American intelligence officers raided the Faisalabad safe house where Abu Zubaida had been staying. A firefight ensued, and Abu Zubaida was captured after jumping from the building’s second floor. He had been shot three times.

Cowering on the ground floor and also shot was Noor al-Deen, Abu Zubaida’s 19-year-old colleague; one source said that he worshiped the older man as a hero. Deen was wide-eyed with fear and appeared to believe that he was about to be executed, remembered John Kiriakou, a former CIA officer who participated in the raid.

"He was frightened — mostly over what we were going to do with him," Kiriakou said. "He had come to the conclusion that his life was over."

Deen was eventually transferred to Syria, but attempts to firmly establish his current whereabouts were unsuccessful.

His interrogations corroborated what CIA officials were hearing from Abu Zubaida, but there were other clues at the time that pointed to a less-than-central role for the Palestinian. As a veritable travel agent for jihadists, Abu Zubaida operated in a public world of Internet transactions and ticket agents.

So you’ve got a panicked teenager spilling his guts, insisting that Abu Zubaydah is just a functionary. And at the same time, Abu Zubaydah was saying he was just a functionary (and providing what useful intelligence he had to offer). And the US response to that was … to make Abu Zubaydah their torture experiment–their test case for what torture techniques did and did not "work." 

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

Last week, in an attempt to claim it didn’t have to turn over any of the 3,000 documents in its torture tape library (or, for that matter, the list of witnesses who had viewed the tapes), the CIA told Judge Alvin Hellerstein that they weren’t going to produce any of their torture tape library to the ACLU.

There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time. All of the information on the list of witnesses covered by Point 3 is either classified or otherwise protected by statute. Accordingly, the CIA is not producing either list to Plaintiffs in redacted form.

On Thursday, Hellerstein reviewed a chunk of those documents and that list. After reviewing them, he has ordered the CIA to start putting together an index of what they’ve got and why they’re refusing to turn it over.

On March 26, 2009, I reviewed, ex parte and in camera, representative documents and information produced by the CIA relating to the destroyed videotapes that are the subject of Plaintiffs’ motion for contempt and sanction. I ordered the Government to create a work plan for production of this material to Plaintiffs, beginning with a Vaughn index within thirty days of my in camera review and production on a rolling basis thereafter, and to file this plan by April, 2009 for my approval.

A Vaughn index is a list of all documents withheld in a FOIA case, with individualized descriptions of why those documents can’t be turned over. Presuming this Vaughn index at least identifies the dates of the documents, we’ll see how widespread discussion of the torture tapes were in 2002, when the CIA and (presumably) its contractors were torturing Abu Zubaydah, in 2003, when CIA’s OIG viewed them, in 2004, when the 9/11 Commission started asking for the torture tapes, and 2005, when Jello Jay asked about them and–later–the CIA created plausible deniability for those who had warned against destroying them and destroyed them.We might see some of the recipients.

And I’m suspecting, given Judge Hellerstein’s continued skepticism after having reviewed the documents, we might see some of the documents.

Note, too, that judges are already holding the government to Eric Holder’s recent declaration on FOIA requiring agencies to lean towards openness. So if the CIA is making bogus claims about some of this stuff, we may well learn about that.